Kiriwanthe and Another v. Nawaratne and Another
KIRIWANTHE AND ANOTHER
v.NAWARATNE AND ANOTHER
COURT OF APPEALA. DE Z.. GUNAWARDANA.
AGRARIAN SERVICES ENQUIRY No. BD/E/34/375NOVEMBER, 28. 1989.
Writs – Writ of Certiorari – Failure to show uberrima fides – Failure to comply with Rule 46of the Supreme Court Rules.
In an application for a Writ of Certiorari to quash the order of the Assistant Commissionerof Agrarian Services of Badulia District dated 15.6.88 the following preliminary objectionswere taken by the 2nd respondent
that the petitioners have not disclosed material particulars in that they have notadverted to the determination made by the Assistant Commissioner of AgrarianServices at the conclusion of the inquiry upon which the said order dated 15.6.88was based and thereby failed to show uberrima tides in placing full facts beforethe Court,
that the petitioners are relying on the failure to state the reasons for the said orderas an error on the face of the record to obtain a Writ of Certiorari, whereas thepetitioner should have disclosed that in fact the said order is based upon thereasons given in the said determination by the Assistant Corhmissioner ofAgrarian Services,
that the petitioners have failed to comply with Rule 46 of the Supreme CourtRules of 1978 in that the petitioners have failed to file along with the petition andaffidavit, the reasons and determination made by the Assistant Commissionerof Agrarian Services which is a part of the proceedings as contemplated in Rule46, that would be necessary to understand the said order sought to be quashedand place it in its proper context.
that the situation that has arisen in this case shows that if the petitioners made a truedisclosure, then the Court may not have acted in this case in the first instance. The fulldisclosure of all material facts is insisted upon, exactly to avoid such situations and toensure that the parties do not mislead the Court or misrepresent facts. If this,requirementis followed it would help to wean out unnecessary litigation and keep Channels of justiceclear, clean and truthful.
that the observance of Rule 46 is mandatory and the failure on the part of the petitionersto comply with the said Rule is a fatal irregularity, which would disable the petitioners frommaintaining this application.
Sri Lanka Law Repons
[1990j 1 SriL.R.
Cases referred to :
King v.General Commissioners for the purpose of the Income Tax Acts (or theDistrict of Kensington — ex pane Princess Edmond de Poignac 1917 K8D 486.
Dalgish v. Garvie 2 Mac & G 231, 238
Alfonso Appuhamy v. Hettiarachchi 77 NLR 131
Navaratnasingham v. Arumugam |1980] 2 Sri LR I
Collettes Ltd. v. Weerakoon and Four Others : CA Application No. 77/ 88 – C.AMinutes of 8.9.1989
Mohamed Haniffa Rasheed Ali v. Khan Mohamed AH S.C. 6/81 S.C. Minutesof 20.11.81
Nicholas v. O.L. M.Macan Markar Ltd. and others  2 Sri LR IAPPLICATION for Writ of Certiorari.
K.M.P. Rajaratne for Petitioners
J.C. T. Kotelawala with Sunil de Silva and Mahanama Wicremaratne for 2nd Respondent.
January 19, 1990.
A.DE Z. GUNAWARDANA, J.This is an application by the petitioners for a writ of Certiorari to quash theorder dated 15.6.88 of the 1st respondent, the Assistant Commissionerof Agrarian Services, Badulla District, Hali – Ela. These petitioners alsoseek to have a Writ of Mandamus issued on the 1 st respondent directingthe 1st respondent to declare that the 1st petitioner W. Kiriwanthe and/ or 2nd petitioner R.M. Wimalawathie are entitled to the rights of R.M.Suduhamy as a tenant cultivator, in respect of the field calledGalpattiyaarawa.
On a complaint made by the 2nd respondent, N.M. Appuhamy, that aperson who is not entitled to be a tenant cultivator in respect of the saidfield is in occupation and is using the same, an inquiry under section14(2) of the Agrarian Services Act No. 58 of 1979, was held by the 1strespondent. After the said inquiry, the 1st respondent by his letter dated
addressed to the 1st petitioner marked P6,made order undersection 14 (2) of the Agrarian Services Act that the said first petitioner isnot entitled to the rights of R.M. Suduhamy as a tenant cultivator, andtherefore the 1 st petitioner should forthwith vacate the said field. It is thesaid order that the petitioners are seeking to quash by way of a Writ ofCertiorari.
When his matter was taken up for hearing in this Court the followingpreliminaryobjectionsweretaken bythe Counselforthe2nd respondent
CA Kiriwanthe and Another v. Nawaratne (A. De Z .Gunawardana, J)3
that the petitioners have not disclosed material particulars, in thatthey have not adverted to the determination made by the 1strespondent at the conclusion of the said inquiry upon which thissaid order dated 15.6.1988 was based and have thereby failedto show uberrima tides in placing the full facts before this court.
that the petitioners are relying on the failure to state the reasonsfor the said order, in the said letter dated 15.6.1988 as an error
. on the face of the record to obtain a Writ of Certiorari, whereasthe petitioners should have disclosed that in fact the said orderis based upon the reasons given in the determination markedP10, made by the 1st respondent after the said inquiry.
that the petitioners have failed to comply with Rule 46 of theSupreme Court Rules of 1978, in that the petitioners have failedto file along with the petition and affidavit, the reasons anddetermination made by the 1 st respondent, upon the conclusionof the said inquiry, which is a part of the proceedings ascontemplated under Rule 46, that would be necessary tounderstand the said order sought to be quashed and place it inits proper context.
The said objections arose mainly from the fact that the petitioners havefailed to file the determination and the reasons given by the 1 st respondent,at the conclusion of the said inquiry, along with the original petition andaffidavit in this Court. However the petitioners have filed the saiddetermination and the reasons along with their counter affidavit, later.The Counsel for the petitioners stated that the petitioners were unawarethat there was a determination and that the reasons have been given forsuch determination, at the time this application was filed. In my view, thisexplanation is unsatisfactory. The petitioners have been represented byCounsel even at the stage of the. said inquiry. In any event with theproduction of the said document, the legal consequences that have flownhas given a different complexion to the whole case.
Counsel for the 2nd respondent submitted that the failure on the partof the petitioner to produce the document containing the reasons and thedetermination of the 1 st respondent has enabled the petitioner to supportthis application before this Court and to get notice issued on therespondents, on the basis that the said order dated 15.6.1988 did not give
Sri Lanka Law Reports
 1 Sri L.R.
reasons. He referred to paragraph 14 (c) of the petition wherein thepetitioner states
“ The 1 st respondent has not given any reasons for his order markedP6.”
This averment the learned Counsel pointed out was erroneous becausethe said order marked P6 was based upon the reasons and thedetermination made by the 1st respondent at the conclusion of the saidinquiry. The learned Counsel for the 2nd respondent submitted that thisshows that the petitioner had not acted with uberrima tides in presentingthe material particulars before this Court.
The Courts in Sri Lanka'and in the United Kingdom have consistentlyheld that it is imperative that uberrima tides must be shown by the partiesbefore Court who invoke the discretionary remedies such as writs andinjunctions. In the case of King vs General Commissioners for the purposeof the Income Tax Acts for the District of Kensington – ex parte – PrincesEdmond de Poignac (1) which dealt with Writ of Prohibition, enunciatedthe principles applicable to all cases of Writs and Injunctions. In this casethe Divisional Court when dealing with the merits of the case dischargedthe Writ on the ground that the applicant had suppressed or misrepre-sented tacts material to her application. The Court of Appeal affirmed thedecision of the Divisional Court.
Lord Cozens – Hardy M.R. in his Judgment in the said case referred tothe case of Dalglish vs. Jarvie (2) where Lord Langdale and Rolfe B. hasstated that –
“ It is the duty of a party asking for an Injunction to bring under thenotice of the Court all facts material to the determination of his rightsto that injunction, and it is no excuse for him to say that he was notaware of the importance of any facts which he has omitted to bringforward."
Lord Cozens – Hardy M.R. goes further to state
“ That is merely one and perhaps rather a weighty authority in favourof the general proposition which I think has been established, that onan ex – parte application uberrima tides is required and unless that can
Kiriwanthe and Another v. Nawaratne (A. De Z .Gunawardana, J)
be established, if there is anything like deception practised on theCourt, the Court ought not to go into the merits of the case but simplysay,' we will not listen to your application because of what you havedone.’"
A similar view was expressed in the case of Alfonso Appuhamy v.Hettiaratchi (3) where it was stated :
“ When an application for a prerogative Writ or an Injunction is made,it is the duty of the petitioner to place before the Court, before it issuesnotice in the first instance, a full and truthful disclosure of all materialfacts. The petitioner must act with uberrima tides:"
Justice Soza in dealing with the question of invoking the revisionary -jurisdiction of this court ih the case of Navaratnasingham v. Arumugam
“ I would like to emphasize that in applications of this type the Court* expects and insists on uberrima tides"
In dealing with an application for a Writ of Certiorari in the case ofColletes Lid. v. Weerakoon and 4 others, (5) the Court of Appeal in itsjudgment has stated that –
“ Thus it is essential that when a party invokes the writ jurisdictionor applies for an injunction to this Court, all facts must be clearly, fairlyand fully pleaded before the Court, so that the Court would be madeaware of all the relevant matters. It is necessary that this proceduremust be followed by all litigants who come before this Court in order toensure that justice and fair play would prevail.”
The above observations aptly sums up the basic norms that should befollowed by the parties before this Court when they invoke discretionaryjurisdiction of this Court such as Writs, Injunctions and Revision. Thereforeit goes without saying that in this case too the petitioner should havefollowed the said norms; unfortunately however, in my view, the petitionerhas failed to do so.
The Counsel for the 2nd respondent submitted that as a result of thefailure of the petitioner to disclose that the order dated 15.6.1988 is basedupon the reasons and determination made by the 1st respondent, the
Sri Lanka Law Reports
[1990) 1 Sri L.R.
Court had been led to issue notice in this case. The Counsel furthersubmitted that if a true disclosure was made, the error on the face of therecord complained of, upon which the Writ of Certiorari is asked for wouldbe non – existent. Therefore he submitted that there is no basis uponwhich a writ of Certiorari would issue in this case as the other groundsurged in the petition do not warrant the issue of a Writ of Certiorari. Thesituation that has arisen in this case shows that if the petitioner had madea true disclosure, then the court may not have acted in this case. Thus itis seen that, the observance of the full disclosure of all material facts isinsisted upon exactly to avoid such situations, and to ensure that theparties do not mislead the Court or mis- represent facts. If this requirementis followed it would help to wean out unnecessary litigation and keepchannels of justice clean and truthful. It is also important because whencourts are called upon to exercise such discretionary powers the Courtsmust be apprised of the true and lawful position in all aspects of the case.It is then, and then alone, that miscarriage of justice and abuse of legalprocess would be effectively averted. In the circumstances, this Court isof the view that the petitioner should have disclosed that the order dated
is based upon the reasons and the determination made by the1st respondent after the said inquiry. In my view, the failure to do sojustifies the denial of the remedy.
The Counsel for the 2nd respondent submitted that Rule 46 of the S.C.Rules require that originals or certified copies of material documents mustbe filed with the petition and affidavit when the Writ jurisdiction of thisCourt is invoked. In the case of Mohamed Haniffa Rasheed Ali v. KhanMohamed Ali and another (6) the majority of the Judges expressed theview that Rule 46 is mandatory. Wanasundera, J. in delivering themajority judgment stated
“ While I am against mere technicalities standing in the way of thisCourt doing justice it must be admitted there are rules and rules.Sometimes Courts are expressly vested with powers to mitigatehardships. But more often we are called upon to decide which rules aremerely directory and which mandatory, carrying certain adverseconsequences for non compliance. Many procedural rules have beenenacted in the interest of the due administration of justice, irrespective
CA Kiriwanthe and Another v. Nawaratne (A. De Z .Gunawardana, J)7
of whether or not a non compliance causes prejudice to the oppositeparty. It is in this context that Judges have stressed the mandatorynature of some of the rules and the need to .keep channels of procedureopen for justice to flow freely and smoothly. The position, of coursewould be worse if such non compliance also causes prejudice to theopposite party."
Having stated so Wanasundera, J. went on to point out that –
“If we are to accede to the appellant’s plea that he should beexcused from complying with the Rule, because the respondent hasfiled some of these docuements, we would be virtually investing theappellant with a discretion whether or not to comply with the Rule,because the required material has already been filed by the oppositeparty or it is anticipated that they would be filed by that party. Such Ithink is riot the law.”
A similar view had been adopted by this Court in construing the-mandatory nature of Rule 47, of S.C. Rules in the case of Nicholas v.
O.L.M. Macan Markar Ltd. and others (7) (1981) 2 SLR page 1.
The rules of procedure have been devised to eliminate delay and tofacilitate due administration of justice. If the procedure set out in the saidlules are not observed, the consequences that a litigant would have toface are illustrative in this case. If the petitioners followed the requiredproceedings at the appropriate time the situation that has arisen in thiscase would not have come to pass. Thus in my view the observance ofRule 46 is mandatory, and the failure on the part of the petitioners tocomply with the said Rule is a fatal irregularity, which would disable thepetitioners from maintaining this application.
For the above-reasons I am of the view that the application of thepetitioners should be dismissed. The 2nd respondent will be entitled tocosts' fixed at Rs. 525/-.